Opinion
No. 38650-0-II.
February 23, 2010.
Appeal from a judgment of the Superior Court for Wahkiakum County, No. 08-1-00001-5, Douglas E. Goelz, J. Pro Tem., entered December 8, 2008.
Affirmed by unpublished opinion per Penoyar, J., concurred in by Van Deren, C.J., and Houghton, J.
Leif Ecklund appeals his convictions of unlawful possession with intent to manufacture or deliver marijuana and unlawful use of drug paraphernalia. He claims that the police obtained the evidence supporting these convictions unlawfully and that the trial court never found that he committed the paraphernalia offense. We affirm.
A violation of RCW 69.50.401(1).
A violation of RCW 69.50.412.
Facts
Leif does not assign error to the trial court's findings of fact and thus they are the established facts of the case. State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Christian, 95 Wn.2d 655, 656, 628 P.2d 806 (1981). With only minor differences, the findings from the suppression hearing mirror those from the bench trial. As Leif challenges the results from the suppression hearing, not the trial, we use those findings and conclusions here:
We use Ed, Sheba, and Leif Ecklunds' first names to avoid confusion. We intend no disrespect.
I. FINDINGS OF FACT
1.1 On January 3, 2008, Wahkiakum dispatch gave Deputy Josh Grasseth a complaint regarding a marijuana grow located at 232 N. Welcome Slough Road on Puget Island. The female caller, identified as Sheba Ecklund, told Deputy Grasseth that her step-son, Leif Ecklund, had a marijuana grow in a travel trailer which belonged to her husband, [Ed] Ecklund. Mrs. Ecklund said she had seen the grow. Deputy Grasseth told her he would be right over. Deputy Grasseth arrived within seven minutes.
1.2 At the residence, Deputy Grasseth spoke with both Mr. and Mrs. Ecklund. Deputy Grasseth was told the marijuana grow was inside the travel trailer in which Mr. Ecklund had allowed his son to live. Mr. Ecklund said he was the only one with a key to the trailer and had access whenever he wanted. Deputy Grasseth asked Mr. Ecklund if he would allow him to see the marijuana grow. Deputy Grasseth told Mr. Ecklund he had two options: (1) consent to the search, or (2) the Deputy would get a warrant. Mr. Ecklund said, "yes," (to the search) and opened the door.
1.3 Mr. Ecklund and Deputy Grasseth went inside the trailer and Deputy Grasseth observed a small marijuana grow inside the bathroom (two plants with a halogen light in the bathtub). Deputy Grasseth observed a timer which had two cords running from it, one to the bathtub and one to a small closet beside the toilet. Inside the closet were seven more marijuana plants with a halogen light.
1.4 Deputy Grasseth asked Mr. Ecklund if he could look around the trailer. Mr. Ecklund said, "yes." Deputy Grasseth located a plastic box with marijuana seeds and marijuana leaf residue, a black digital scale and a marijuana grinder.
II. CONCLUSIONS OF LAW
2.1 The "knock and talk" procedure under [Ferrier] does not apply when police officers are invited into their homes for investigative purposes. [State v. Williams], 142 Wn.2d 17, 11 P.3d 714 (2000), [State v. Tagas], 121 [Wn. App.] 872, 90 P.3d 1088 (2004).
2.2 A "totality of circumstances" test is used to determine whether consent to search is valid. [State v. Bustamante-Davila], 138 Wn.2d 964, 983 P.2d 590 (1999).
2.3 Because the consent was voluntary and Mr. Ecklund had authority to consent and the search did not exceed the scope of consent, the consent to search the trailer was valid. [ State v. Shoemaker], 85 Wn.2d 207, 210, 533 P.2d 123 (1975).
Clerk's Papers (CP) at 34-35.
Following a stipulated facts trial, the superior court entered additional findings of fact, conclusions of law, and this verdict:
IV. VERDICT
4.1 The Defendant, Leif W. Ecklund, is guilty of possession with intent to manufacture or deliver a controlled substance, to-wit: marijuana.
CP at 39.
The sentencing court imposed 45 days of confinement on the manufacturing count, converting it to 25 days of community service. It did not impose a sentence on the paraphernalia count.
analysis
I. Motion to Suppress
Leif argues that the trial court erred in denying his motion to dismiss because Grasseth never gave Ferrier warnings to Ed, he obtained Ed's consent through coercion, and he never obtained Leif's consent to search the trailer. The State contends that Leif cannot assert his father's rights and he was not present to override Ed's permission to search.
State v. Ferrier, 136 Wn.2d 103, 960 P.2d 927 (1998).
A. Standing
We disagree with the State's contention that Leif lacks standing to challenge the search. Leif lived in the trailer for over five years and had a legitimate expectation of privacy that allowed him to challenge the search. In State v. Francisco, the court observed:
The capacity to claim the protection of the Fourth Amendment "depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place."
107 Wn. App. 247, 252, 26 P.3d 1008 (2001) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978) (person can have legitimate expectation of privacy in a place other than his own home so that the Fourth Amendment protects him from unreasonable searches)). See also Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) (grandson had standing to challenge search of grandmother's home during his absence because he also resided there).
B. Ferrier Warnings
Leif first asserts that Grasseth failed to give Ferrier warnings to Ed and Sheba and thus the search was unlawful. He explains that this situation is like a "knock and talk" because Grasseth came to the property looking for someone with authority to consent to a search for drugs, knowing that Sheba lacked such authority.
In State v. Ferrier, our Supreme Court held that under article 1, section 7 of the Washington Constitution, police officers must inform home owners that they have a right to refuse an officer's request to search their home:
[W]hen police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home. The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter.
1136 Wn.2d 103, 960 P.2d 927 (1998) (footnote omitted). In State v. Bustamante-Davila, the court limited Ferrier's application to "knock and talk" coercive searches like the police employed there, rejecting the notion that police must give such a warning every time they seek consent to search. 138 Wn.2d 964, 980, 983 P.2d 590 (1999).
Here, Ferrier simply does not apply. Grasseth came to the Ecklund property because Sheba asked him to do so. Ed knew that Sheba had called the sheriff before Grasseth arrived and Ed accompanied him to the trailer and went inside with him. Further, Grasseth explained that Ed could consent to the search or he would use his canine dog to support obtaining a search warrant.
In either case, this is not a situation even remotely similar to a "knock and talk" where the homeowners find an uninvited police officer at his front door asking permission to enter and search his home for drugs. None of the coercive aspects of such a search existed here where Grasseth came at the owner's invitation and was then personally shown to the trailer and accompanied inside. Further, the record does not support Leif's assertion that Sheba lacked authority (even apparent authority) to consent to the search. Leif's attempt to characterize these circumstances as requiring Ferrier warnings is misplaced.
C. Coerced Consent
Leif next argues that Grasseth coerced Ed's consent. He notes that Grasseth did not give Ed Miranda warnings; he asked permission but really gave him no choice, saying that Ed could consent or he would get a warrant but in any case he would be searching the trailer; Ed had only a high school education; and Grasseth did not inform Ed that he could refuse to allow the search or limit its scope.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d (1966).
Leif relies on State v. Werth, 18 Wn. App. 530, 571 P.2d 941 (1977). There the police dispatcher ordered Werth out of her house, which police officers had surrounded. They ordered her away from the door, told her to keep her arms in the air, and at least one officer bore a shotgun. Werth, 18 Wn. App. at 535. Though she consented to the police request that they look for a suspect in her home, they did not tell her that she had the right to refuse. Werth, 18 Wn. App. at 535. Furthermore, two days earlier, the police had illegally searched her home without a warrant. Werth, 18 Wn. App. at 535. In finding that her consent was not voluntary, Division One observed:
[I]t is apparent that overall, the situation was rife with coercion. She may well have verbalized her consent to the search, but there can be little question that, in her own mind, police were going to search her home with or without her consent.
Werth, 18 Wn. App. at 535.
Whether consent is voluntary or results from duress or coercion is a factual question answered by looking at the total circumstances in which the person gives consent. State v. Apodaca, 67 Wn. App. 736, 739, 839 P.2d 352 (1992). It is the State's burden to prove with clear and convincing evidence that the consent was voluntary. Apodaca, 67 Wn. App. at 739. Consent may be voluntary even when the police threaten to obtain a search warrant unless grounds did not exist to support a warrant. Apodaca, 67 Wn. App. at 739-40 (threat to obtain warrant when defendant had complied with statutory reporting requirements made consent involuntary).
The situation here is not comparable to that in Werth. Sheba invited Grasseth, Ed did not object, Ed was not under arrest, and, at least according to Ed's testimony, he believed that Leif had removed his grow operation from the trailer. Thus, he freely consented to Grasseth's request. The record shows nothing coercive about the situation. In fact, the trial court observed:
First of all, regarding duress, I listened to Mr. Ed Ecklund's testimony and as far as duress, I don't find any duress. Mr. Ecklund impressed me as being a man who just really wasn't under much stress or strain that day and I don't find that he was suffering from any duress. I think his answers were just straightforward and down to earth.
Report of Proceedings (RP) at 49. Further, Grasseth had his canine with him and thus had the means to establish probable cause that the trailer contained a marijuana grow operation, even absent Sheba's and Ed's assertions that they had seen the grow operation in the trailer and had even asked Leif to remove it.
D. Lack of Consent
Leif argues that Grasseth should have asked for his consent as well before searching the trailer. He notes that Ed spoke with Leif on the telephone and, at Grasseth's request, asked Leif to come home. He could have, Leif argues, asked for his consent over the telephone. Alternatively, he argues that Ed lacked authority to give Grasseth permission to search the trailer as it was Leif's residence and, while Ed owned it, he did not occupy it.
The State's burden at the suppression hearing was to prove that Ed's consent was voluntary, that he had authority to grant consent, and that the search did not exceed the scope of Ed's consent. State v. Nedergard, 51 Wn. App. 304, 308, 753 P.2d 526 (1988). Addressing this issue primarily involves whether Ed had authority to grant consent because we have already held that his consent was voluntary and we see no basis in the record to find that Grasseth exceeded the scope of Ed's consent.
Whether Ed had authority to grant consent turns on whether he had "common authority in terms of `control' over the premises." State v. Morse, 156 Wn.2d 1, 10, 123 P.3d 832 (2005) (citing State v. Leach, 113 Wn.2d 735, 739, 782 P.2d 1035 (1989)). The court defined this type of control:
The right of control may be based upon consent by one with an equal or superior interest in the premises or upon some independent authority. The touchstone of the inquiry is that the person with common authority must have free access to the shared area and authority to invite others into the shared area. That access must be significant enough that it can be concluded that the nonconsenting co-occupant assumed the risk that the consenting co-occupant would invite others into the shared area. . . . The existence and scope of common authority is a legal question which must be determined by the court based upon the facts of each case.
Morse, 156 Wn.2d at 10-11. The trial court's findings of fact establish that Leif stayed in a trailer that Ed owned on the Ecklunds' property. Leif lived there with his father's consent but Ed had the only key to the trailer "and had access whenever he wanted." CP at 38. That Ed did not allow Leif to lock the trailer, told him to get rid of the marijuana grow, and freely accessed the trailer, strongly supports the trial court's conclusion that Ed had authority to grant consent to Grasseth to search the trailer.
As to whether Grasseth could have obtained Leif's consent over the telephone, the record contains no testimony in this regard as Leif did not make this claim below. Despite Leif's assertions otherwise, there is no evidence in the record that Leif came home before the search took place. As such, his argument rests on pure speculation and does not assail the trial court's conclusion that Ed's consent was sufficient to allow the search.
II. Use of Paraphernalia Verdict
Ecklund next argues that the trial court denied him his right to due process because it never rendered a verdict on count II. He asks us to vacate this conviction as a result.
While the trial court's written findings of fact and conclusions of law do not contain the court's conclusion that Ecklund was guilty of using drug paraphernalia, the court's judgment and sentence does. Section 2.1 of that document states: "The defendant is guilty of the following offenses, based upon . . . bench trial (date) 10-27-08: . . . [Count I,] Possession with Intent to Manufacture or Deliver a Controlled Substance — Marijuana [and Count II,] Use of Drug Paraphernalia." CP at 40. Further, the trial court's unchallenged findings of fact and the evidence in the record supporting them demonstrate that the State proved with sufficient evidence that Ecklund committed the offense. We find no error of consequence.
III. Statement of Additional Grounds
In a Statement of Additional Grounds, Leif claims that Grasseth searched for the paraphernalia when he was present but asked his father, not him, for permission. He also claims that he never intended to sell the marijuana and that he told Grasseth that it was for personal use.
We cannot review either claim because nothing in the record supports them and Leif did not raise them before the trial court below. See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995) ("Where, as here, the claim is brought on direct appeal, the reviewing court will not consider matters outside the trial record.") (citing State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10 (1991)).
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and HOUGHTON, J., concur.